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ALEC, For-Profit Criminal Justice, and Wisconsin

As the first half of 2011 has revealed, Wisconsin is not a moderate “purple” state, but a state divided between staunchly “blue” progressives and righteous “red” right-wingers. That rift is particularly apparent in legislative conflicts over the criminal justice system, a debate spurred by corporate interests represented in the American Legislative Exchange Council (ALEC) and perpetuated by ALEC legislative members, including Wisconsin Governor Scott Walker.

Wisconsin’s history and public policy reflects the red/blue divide. It is the state that gave birth to the Republican Party, which supported slavery abolition, and the John Birch Society, which opposed the civil rights movement. In the first half of the 20th Century, the state elected both progressive hero Robert “Fighting Bob” LaFollette and right-wing extremist Joe McCarthy. It is the state that elected both former Senator Russ Feingold (D) and Representative Paul Ryan (R).

Wisconsin also produced Paul Weyrich, who in 1973 co-founded both the Heritage Foundation and ALEC (and in subsequent years, Free Congress and Moral Majority). Weyrich's ALEC, it seems, has been a factory for many of the state’s most recent right-wing policy initiatives.

Elements of Wisconsin's criminal justice system reflect Wisconsin’s progressive traditions. Since 1979, Wisconsin has been ahead of most U.S. states in banning commercial bail-bonding (46 states still use it), joining the rest of the world in recognizing the practice as unacceptable (it is criminalized in countries like England and Canada). Posting another person's bail for profit has a record of corrupting the sentencing process, and puts the decision of whether an accused person goes free in the hands of a profit-oriented business. Wisconsin has led the way in exploring evidence-based, pre-trial release alternatives; according to Milwaukee County District Attorney John Chisolm, Wisconsin counties like Milwaukee have been working with the Vera Institute for years to "get money out of the bail process altogether," using evidence-based practices "to determine who should not be released and who can be released under supervision," with necessary intervention to protect public safety.

Additionally, unlike 25 other states, Wisconsin has resisted the move toward establishing for-profit prisons. Nationwide, private prisons have been a growth industry: the number of persons incarcerated over the past decade has increased 16 percent, but the number held in private correctional facilities has increased 33 percent on the state level and 120 percent on the federal level. Meanwhile, the two largest private prison operators, Correction Corporations of America and GEO Group (formerly Wackenhut), raked in a combined $2.9 billion in revenue in 2010. According to the Justice Policy Institute, “as revenues of private prison companies have grown over the past decade, the companies have had more resources with which to build political power, and they have used this power to promote policies that lead to higher rates of incarceration.”

Both the for-profit prison industry and the for-profit bail-bond industries have done so through ALEC, the national organization that facilitates corporate-sponsored “model bills” for legislators to introduce in their states.

ALEC and For-Profit Criminal Justice

The American Bail Coalition (ABC), the for-profit bail bond industry’s national organization and lobbying wing, calls ALEC the industry’s “life preserver”. ABC pays for ALEC membership, and a representative sits on the ALEC corporate board (the “Private Enterprise Board”) as well as ALEC’s Executive Committee. The trade group boasts that “during its two decade involvement with ALEC, ABC has written 12 model bills fortifying the commercial bail industry.”

The nation’s largest private prison operator CCA is also an ALEC member and funder, and pays for a seat on the “Public Safety Task Force” that approves ALEC model legislation dealing with crime and penalties. Since the late 1980s and 1990s, ALEC has created model bills that lengthen sentences, which have dramatically increased incarceration rates, and bills that privatize prisons, putting more of those inmates under the control of for-profit corporations.

Wisconsin politicians have long ties to ALEC. Former Governor Tommy Thompson was involved in ALEC’s early years. Milwaukee’s groundbreaking “school choice” program was based on ALEC model legislation. ALEC alum Scott Walker’s first act upon becoming governor was to introduce an omnibus “tort reform” bill mirroring many ALEC bills. But, the state’s progressive traditions have thus far trumped efforts by ALEC’s Wisconsin legislators to open the state to commercial bail-bonding and private prison industries. But they are still trying.

ALEC Legislators Try Opening Wisconsin to Bail-Bonding

In 2003, Wisconsin Rep. Scott Suder (R-69) introduced a bill to reinstate commercial bail-bonding. Suder was a longtime ALEC alum and former co-chair of the ALEC “Criminal Justice Task Force,” which was also co-chaired by representatives of ABC (formerly known as the National Association of Bail Companies).* At the time, editorial boards from the Milwaukee Journal-Sentinel and the Wisconsin State Journal wrote in opposition to the Suder-sponsored plan. In response, ALEC board member and American Bail Coalition Chair William B. Carmichael wrote an op-ed in the Wisconsin State Journal defending commercial bail bonds. Carmichael also donated to Suder's campaign the previous year.

That effort failed, but this June Rep. Robin Vos (R-63), the new state chair of ALEC in Wisconsin, squeezed a last-minute provision into the state budget that would return for-profit bail bondsmen to the state. The American Bail Coalition had one lobbyist operating since the beginning of the year and registered a second lobbyist in the state on June 1, just as Wisconsin’s Joint Finance Committee convened.

ALEC alum Scott Walker and For-Profit Prisons

Current Wisconsin Governor Scott Walker was a proud ALEC member when he was in the state legislature. Among the ALEC bills he introduced were "truth in sentencing” and several ALEC-inspired bills to privatize the state's prison system; these bills had been approved by the ALEC Criminal Justice Task Force (of which the for-profit prison company Corrections Corporation of America is a member, and at times the co-chair). Since taking office, Governor Walker has continued to push these ALEC-supported “criminal justice” efforts.

In 1997, then-Representative Walker introduced (and the legislature passed) the ALEC "truth in sentencing" act, which requires inmates serve their full sentence without options for parole or supervised release. The law takes away incentives for prisoners to reduce prison time through good behavior and participation in counseling, and eliminates the ability for judges and parole boards to decide that the financial and social costs of keeping a particular person incarcerated no longer furthers public safety goals. The state estimated that the first 21 months after the law took effect would require 990 inmates to spend 18,384 additional months in jail, costing taxpayers an extra $41 million. In the seven years after the law took effect, Wisconsin’s prison population increased 14%, with no correlative public safety benefit or additional decline in crime rates. Further, the annual budget for the state prison system increased from $700 million in 1999 to $1.2 billion in 2009, becoming the third-largest expenditure in the 2009-2011 state budget.

At the time, "[t]here was never any mention that ALEC or anybody else had any involvement" in the crafting of the bill, said Walter Dickey, a former head of Wisconsin’s prison system and current University of Wisconsin Law Professor, and who had paid close attention to the truth-in-sentencing debate.

During this period of growing prison populations, then-Representative Scott Walker introduced several bills between 1997 and 1999 that would allow private prisons in Wisconsin, including one to privatize state prison operations (see the ALEC bill here), and another allowing private corrections companies to open prisons in Wisconsin to house inmates from other states (see the ALEC bill here). Walker noted in 1998 that longtime ALEC member Corrections Corporation of America (CCA) wanted to expand into Wisconsin. While those bills did not pass, some inmates were contracted-out to private prisons in other states, and CCA has registered lobbyists in the state ever since.

"Clearly ALEC had proposed model legislation," Walker told American Radio Works in 2002. "And probably more important than just the model legislation, [ALEC] had actually put together reports and such that showed the benefits of truth-in-sentencing and showed the successes in other states. And those sorts of statistics were very helpful to us when we pushed it through, when we passed the final legislation." Those statistics, though, were critiqued by criminologists as unreliable and intended to persuade rather than educate: Walker said that he and fellow ALEC members relied on an ALEC report crediting Virginia's truth-in-sentencing law with a five-year drop in crime, but crime dropped in ALL states in the 1990s, regardless of whether a state passed tough-on-crime laws like truth-in-sentencing.

Dickey said in 2002 it is "shocking" that lawmakers would write sentencing policy with help from ALEC, a group that gets funding from, and supposedly "expertise" from a private prison corporation.

"I don't know that they know anything about sentencing," he said. "They know how to build prisons, presumably, since that's the business they're in. They don't know anything about probation and parole. They don't know about the development of alternatives. They don't know about how public safety might be created and defended in communities in this state and other states."

(See this graphic from American Radio Works explaining the CCA-ALEC-Wisconsin sentencing law connection)

The Wisconsin state legislature apparently recognized the folly of truth in sentencing and rolled-back aspects of the law between 2001 and 2009. When Scott Walker became governor, he reversed this progress and pushed for legislation fully restoring the ALEC corporation-supported truth in sentencing, despite the costs to taxpayers and despite claiming Wisconsin was "broke." In early July, Governor Walker ‘s office released a statement supporting expanded use of prison labor, another idea promoted in ALEC bills. Some observers have speculated that private prisons are next.

ALEC Exposed

Almost always drafted outside of the state with little or no input from state residents (but significant input from corporate interests), ALEC bills have made substantial changes to laws in all 50 states and in some ways determined how state taxpayer dollars are allocated. The full list of legislative membership in ALEC is not public, and legislators introduce ALEC bills in the legislator’s own name. ALEC conferences allow elected officials to hobnob with some of the wealthiest corporations in the world, often behind closed doors and without public scrutiny. This secrecy has prevented state residents from holding their elected leaders accountable for passing laws that serve out-of-state corporate interests at the expense of the individuals that live, work, and vote in the state.

ALEC Exposed, a project of the Center for Media and Democracy, has published an archive of ALEC “model bills” to give citizens the tools to make informed decisions and fully participate in their state democracy. One way state residents can use these tools is to better understand the origin of for-profit bail-bond and for-profit prison laws in their state, and whose interests are being served by the politicians supporting these bills. Please visit ALEC Exposed.org.

* ALEC does not have an explicit "model bill" to re-open a state to bail-bonding, but that is likely because only four states prohibit the practice -- there would be little reason to create a "model" that is inapplicable to the vast majority of states. Instead, ALEC allows the bail-bond industry to rub shoulders with Wisconsin legislators, then pitch the "benefits" of the practice and perhaps offer support for their election campaigns. Once the ALEC legislator successfully breaks-open Wisconsin for bail-bonding, they can go ahead and introduce ALEC "model bills" to further support the industry.

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Brendan Fischer is associate counsel at The Campaign Legal Center. Formerly with PR Watch, he graduated with honors from the University of Wisconsin Law School. Prior to law school, Brendan served as a Peace Corps Volunteer in a rural community in Northeastern El Salvador. Twitter: @brendan_fischer

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